Despite medical evidence and testimony showing that obesity is not caused
simply by eating too much, the MSPB still sticks to an archaic legal analysis
of the condition.

Many MSPB decisions in disability retirement cases relating to the medical
conditions of obesity or morbid obesity start from a faulty premise –
the legal equivalent of a belief that the earth is flat. This faulty premise
is that the person with obesity simply eats too much or that obesity is
a personal choice. The MSPB decisions follow this faulty premise to its
conclusion, often finding that the Appellant failed to take advantage
of medical suggestions for exercise and weight reduction programs. As
a result, the Judges conclude that the disability for which the Appellant
seeks FERS or CSRS Disability retirement “…flowed not from
the disease or injury itself, as required by statute, but from voluntary
failure or refusal to take available corrective or ameliorative action.”
One memorable decision hinted that extreme measures, such as “modified
fasting” or “bypass surgery”
might be too drastic to expect a disability retirement applicant to undergo.

There are two ways to approach this judicial and/or institutional prejudice
against the obese or morbidly obese in the application for disability
retirement or the MSPB appeal of OPM‘s denial of FERS or CSRS Disability
retirement applications.

The first – and best – way is to take away the possibility
that OPM or MSPB can reach the conclusion – prove to OPM or the
MSPB that you have attempted to take ameliorative or corrective action
for the obesity. Have your doctor certify exactly what treatment plan
he or she laid out for the obesity, whether you followed that treatment
plan, and whether it had a “corrective” or “curative”
effect. All other things being equal, the MSPB or OPM cannot disqualify
you from eligibility for disability retirement so long as you comply with
your doctors orders and treatment (within reason, as is discussed elsewhere
in this blog).

The second is to challenge the prejudice. Like many mental health conditions,
obesity is often wrongfully believed to be a function of personal choice.
The only way to change bad law is to fight it. Though cases in the MSPB
move very quickly, the law moves very slowly, and it will take a long
and concerted effort to challenge the MSPB‘s institutional prejudice
against the obese or morbidly obese.

No post on this website is legal advice, is meant to be legal advice, and
certainly does not serve as a substitute for legal advice. Information
is power, and we are providing this information to give you, the federal
employee, with some power. This information is not widely or easily accessible
to Federal Employees.

The Law Office of Eric Pines represents Federal employees under FERS or
CSRS in their applications for federal disability retirement to OPM. If
an application for federal disability retirementis denied, the Firm represents
Federal employees under both FERS and CSRS in their MSPB appeals of denials
of federal disability retirement applications by OPM.

It is best to consult with a lawyer familiar with Merit Systems Protection
Board (MSPB) and federal disability retirement appeals to discuss the
facts and law of your particular case. If you are obese, or morbidly obese,
and would like to discuss your application for federal disability retirement
under FERS or CSRS, or OPM’s denial of your applications for federal
disability retirement benefits under FERS or CSRS, contact an MSPB attorney
or a Federal Disability Retirement Lawyerat the Law Office of Eric Pines
to schedule a telephone consultation.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.